En Banc Review Possible for MI Mug Shot Case

CINCINNATI (CN) – A 6th Circuit panel seemed open on Wednesday to a possible en banc review of case law regarding the release of mug shots under the Freedom of Information Act. The Detroit Free Press Inc. – which has been litigating the issue for over two decades – tried to convince the panel during oral arguments to keep the status quo, which allows for the release of mug shots if certain criteria are met. The U.S. Department of Justice, however, seeks a full court review of the issue, and its attorney stressed that a person undoubtedly has “a non-trivial privacy interest in [his or her] mug shot.” A 6th Circuit ruling in 1996 involving the same parties determined that a request under the FOIA for a federal mug shot can be granted, so long as several criteria are met. These criteria include a federal indictment against the individual, a public appearance in court by the individual, and ongoing court proceedings against the individual. Importantly, the request can be denied if the individual in question is not currently being prosecuted, whether he or she was found guilty or not. Attorney Steve Frank, representing the DOJ, admitted he was mystified by the delineation. “A person innocent before the law has no privacy interest [in a mug shot release], but someone convicted and serving time has a privacy interest. I can’t wrap my head around that,” he said. Frank cited rulings in two other U.S. Circuit Courts that run counter to the process established by the 6th Circuit in an effort to convince the panel to recommend an en banc hearing. He explained that “all we are asking is for the court to find the privacy interest in mug shots is greater than non-trivial. [We can] then proceed to the balancing test.” U.S. Circuit Judge David McKeague questioned the application of such a test, which would, in theory, balance an individual’s right to privacy against a public interest in obtaining the pictures. Frank explained that an individual at the Justice Department would review each request for information to determine if there was a public interest in releasing the mug shots. McKeague pressed the attorney: “The presumption is that [requesters] don’t get the pictures, correct?” Frank agreed, but was quick to point out that in most cases, “there is no public interest.” Herschel Fink, attorney for the Detroit Free Press, tried to convince the panel that the current system is a perfect application of “checks and balances,” and also provides the individual with the “right to be forgotten” after court proceedings have concluded. McKeague asked Fink whether the prevalence of mug shots on the internet could alter the way the court interprets the FOIA requests, but Fink quickly rejected the idea. “[It has] no more of an effect than archives which hold stories,” Fink said. He added: “I don’t understand, frankly, what is private about the visage of a person.” U.S. Circuit Judge Deborah L. Cook fought Fink on this point. She said: “It is not just a visage. [A mug shot] is a person in a guilty pose. [The public’s] reaction to a mug shot is ‘that person is guilty.'” Fink, who began his argument by pointing out that he has represented Detroit Free Press on this topic for over 22 years, reminded the panel that the ruling in the 1996 case only applied to U.S. Marshals offices in the 6th Circuit. He suggested the court clarify its previous ruling to assert that it has no nationwide implications, and urged the panel not to “kowtow” to the other circuit courts. Frank pounced on the panel’s concern over internet mug shot availability with his final statement, and stressed that “these things last forever on the internet. Youthful indiscretions … could follow individuals for the rest of their lives.” U.S. Circuit Judge Ralph B. Guy Jr. rounded out the panel. No timetable has been set for the panel’s decision.